A menace to democracy

“Necessity is the plea for every infringement of human freedom,” said William Pitt. “It is the argument of tyrants; it is the creed of slaves.” Honourable exceptions past and present aside, a judiciary that for 75 years argued for tyrants has fallen slave to the populist creed. As in the past, so today in a complex garb: Pakistan’s judiciary is a menace to democracy.

The menace does not end with facilitating populism. Prof Mark Lemley’s view fits Pakistan since 2009 perfectly: “By simultaneously stripping power from every political entity except the Supreme Court itself…and undercutting the ability of any entity to do something the justices don’t like. We are in the era of the imperial Supreme Court.”

Some courageous judgments and dissents nonetheless shine in history: Justice Cornelius’s dissent in Tamizuddin 1955, Asma Jilani Judgment 1972, the 2009 Sindh High Court Bar Association judgment, and Tasadduq Jilani’s 2014 judgment on minority rights. During the dark age of 2017-23, the light of constitutionalism was kept burning by bold verdicts such as a few bail verdicts and the 2019 Faizabad dharna judgment.

Two dissenting Supreme Court (SCP) judges earlier this month eviscerated the majority’s short-order on reserve seats. The dissent eschews name-calling, does not mention pulp-fiction writers or nebulous philosophers, and is argued on constitutional grounds. Separate dissents by two senior judges have furnished us previously with significant concepts of “Imperial Supreme Court” and “politicians in robes”.

There are judges at every level of the judiciary that stand up every day for the law and the constitution through their judgments. A few principled dissents and courageous judgments cannot, however, paper over an undeniable “long train of abuses and usurpations” by the apex court; beginning with sanctifying illegal dissolution of constituent assembly in Tamizuddin 1955, justifying a coup d’etat in Dosso 1958, down to Nusrat Bhutto 1977, and Zulfiqar Bhutto’s conviction and hanging in 1979.

In Zafar Ali Shah 2002, the Supreme Court not only justified another coup d’etat but authorized the dictator to amend the constitution; the court failed to defend the constitution against the 2007 Emergency, and went on to frivolously disqualify two elected prime ministers: Yousuf R Gilani in 2012 and, five years later, M Nawaz Sharif through the travesty of the Panama/Iqama judgment.

Three successive chief justices beginning with 2017 ruptured their remits. They pillaged the constitution and oversaw, as per one SC verdict, “trampling of fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the constitution.” This infamy reached a peak in the Parvez Elahi case 2022 in which the court ravaged Article 63 of the constitution.

The 2022 calamity has now been trumped by the Supreme Court majority’s short-order on reserve seats. The order echoes the poet Cavafy on the barbarians, positing the populists as “a kind of solution”. The grundnorm of Pakistani jurisprudence, it is clear, is not the constitution of the republic but the will of the honourable judges. In the detailed judgment on reserved seats, long overdue, the doctrine of necessity fig leaf will probably be replaced by new fig leaves of “complete justice”, “principle of equity”, “penumbras and emanations” and allusions to “constitutional fabric”.

Debate on the SIC short-order has unmoored itself from constitutional bounds, as did the order itself. The decision before the court was an appeal under Article 185 of the constitution against a judgment of the Peshawar High Court (PHC) that in turn upheld a decision by the Election Commission of Pakistan. Appellate jurisdiction is narrow; the apex court is profligate. Neither Article 185 nor 187 of the constitution give carte blanche to the esteemed justices to rewrite or nullify any part of the constitution. Some constitutional clauses are rules, but many are principles. Principles allow room for interpretation; rules do not. The appeal was a case of rules.

Instead of providing even a semblance of constitutionally-grounded rationale to reverse the PHC judgment, the Supreme Court’s majority fabricated an ex cathedra order. The majority created a parliamentary party out of thin air, forced members of Parliament to violate their solemn written oaths and change party allegiance, removed the requirement of election symbol for political parties, manufactured fictional deadlines, and magnified the Panama judgment outrage of one monitoring judge to eight monitoring judges by inviting applications before “Judges constituting the majority in chambers for such orders and directions as may be deemed appropriate.”

“The Supreme Court declared itself the sole interpreter of the constitution,” writes Elie Mystal. “The word ‘unconstitutional’ appears nowhere in the constitution, and the power to decide what is or is not constitutional was not given to the court in the constitution or by any of the amendments. The court decided for itself that it had the power to revoke acts of [parliament] and declare actions by the [executive] ‘unconstitutional’.”

Since 2009, the Supreme Court has taken significant steps to restrict the power of the legislature, the executive, the Election Commission, and even lower courts. “The common denominator across multiple opinions,” writes Prof Lemley, “is that they concentrate power in one place: the Supreme Court.” The exercise of this power is no less arbitrary, petty, and contemptuous of law than that exercised elsewhere in the Pakistani state.

Pakistan’s executive and legislature have scarcely resisted the court’s onslaught. Instead, they have contributed to their own feebleness by retreating ignoby in face of judicial overreach; and failing to forswear bargaining, to legislate bona fide timely, and to bring transparency and legislative oversight to selection of judges.

One trembles sitting in the glasshouse of political parties, whose own fealty to constitutionalism and democracy in government and in opposition is execrable. After three-quarters of Pakistan’s first century, all institutions of the state bar none have lost their last shreds of moral authority and democratic credibility.

Pakistan’s judiciary no longer has any entitlement to a higher pedestal. It has become politicized grotesquely through depredations of our regimes, dictatorial as well as elected, and through depredations of its own. The law is “sword, shield, and menace”, said Ronald Dworkin. All three are in the mire with the rest of the state. The country is sliding towards fascism masquerading as populism, and the judiciary is greasing the slope.

The writer is a former member of the National Assembly. He tweets/posts @kdastgirkhan